*1 lili America, UNITED STATES of Plaintiff-Appellee, Harvey ROTH, Jr.,

Herbert Defendant- Appellant.

UNITED STATES of Plaintiff-Appellee,

Christopher KEPHART, Defendant-

Appellant. 71-1436,

Nos. 71-1437. States Court of

Ninth Circuit.

Certiorari Denied Dec. See 93 S.Ct. (argued), Robert J. McCrea Muld- er, McCrea, Eugene, Or., Morrow & Wil- Brockett,

liam (argued), A. Jr. Michael Walsh, Diego, Cal., H. appellant. San Shelby Gott, Atty. Asst. U. S. (argued), Filsinger, Joseph Robert H. Milchen, Attys., A. Harry Asst. S.U. D. Steward, Atty., Diego, Cal., U. S. appellee. MERRILL, Before BARNES Cir Judges, BYRNE, Jr., cuit District Judge.* * Jr., Byrne, Judge, Honorable Wm. Matthew United States District Central District of Cali- sitting by designation. fornia, *2 Jr., Dis- each defendant did MATTHEW testified that he BYRNE, WM. drugs Judge: the marihuana or that had trict illegally imported country been into this Kephart appeal Defendants Roth and any knowledge denied and of their for- in for con- from conviction spiracy, a trial eign origin. Both disavowed defendants smuggling transportation and smug- participation any conspiracy to 176a, Title 21 marihuana under U.S.C. § gle knowingly Roth denied marihuana. transportation of and

and concealment dealing in heroin. dangerous drugs illegally smuggled of Title 18 U.S.C. 545. violation § pointed testifying, Roth to the While concealing appeals his conviction for peace presence in the courtroom of two transporting heroin in and violation Oregon officers from the State of whom Title 21 174. U.S.C. § “monitoring” he testi- believed were his mony. prejudi Appellants contend that closing attorney In Roth’s error from the cial Government Oregon presence referred to the attorney’s improper state and incorrect officers and that stated as result of closing argument ment of the and law in testimony, Roth and both give refusal to a corrective court’s Kephart had incriminated themselves requested. instruction as Oregon under ly law and would undoubted- presented The evidence to Government prosecuted.1 sug- then be Counsel establish that and two defendants gested that if the defendants were ac- engaged co-conspirators other away quitted, they “getting would not be drugs dangerous smuggling marihuana, something” hap- with because whatever and narcotics into pened case, they in the federal would be subsequently from Mexico trans- and Oregon prosecuted convicted for the and porting them Southern from California offenses.2 Oregon. testimony, to Roth and Kephart possession argued Kephart’s and his cli- each admitted that counsel dangerous testimony sale of the marihuana and ent’s since should be believed drugs Oregon during alleged testify the time to about in order to the truth They willing case, in the indictment. incrimi- both acknowl- this he had to edged subjected that violated to awareness had nate himself and be Oregon. However, criminal laws cution violating question “Now, you there he is no he knew told that prosecuted you law, some- that Mr. Roth is to be from remember state and activity regard thing Roth] and his with convicted of Mr. [counsel McOrea Oregon. later, just sat there State of Officers a few moments asked testimony, couple peace and listened the sworn to officers from reporter Oregon present and there the courtroom. transcribed question reasonably you will that that this occur. think conclude question subjecting him- “But here is : he been Has knew that he was Oliris of violations that fall within the state self to serious case, charges marijuana possession terms of in this in the sale of and Oregon. case?” But he took the you, testified, to submit and he stand know, happens, also, 2. “We that whatever find, candidly, truthfully as will and here, Kephart Mr. Mr. and Roth will participation of his [sic] the extend prosecuted, undoubtedly, and, convicted. conspiracy.” alleged in this They any defense, their own “ Kephart the stand took . . . Chris sworn convict them statements of violat- explained in this his role and he question State offenses. great enterprise, cost so he did at of that matter. defense, himself, that was truth, he’s means if the truth it isn’t “And I submit a situation subjected to a serious State away something.” getting of someone with price, willing pay prosecution, lie’s price [Kephart] stand, willing pay tell told took he “Chris he’s you, candidly, He broke that he the law. here.” the truth argument this line of In rebuttal discretion of the court to deter defendants, prejudicial mine initiated Government misconduct know, stated, appellate tell occurred. An court will not counsel “You nie you sosnething, by De- don’t be buffaloed review the court’s exercise telling fense up stood Counsel discretion such a matter unless the stand, here, prejudice took the misconduct and is so clear that *3 offenses, and, they judge it admitted be said that the has you acquit therefore, if them of the Fed- been of an of abuse discretion.” they’re going offenses, eral We find no such of discretion in abuse guaran- cuted in the There’s no State. any this case. The record indicates that going happen. tee that’s possible planned error was and invited guarantee happen. by Roth and counsel for defendant. each First, they’ve got Fed- of all beat prejudiced by The defendants were not rap, see, they eral and if do beat peripheral these invited and remarks legal offense, defense Federal then their prosecutor. See Ochoa v. United jeopardy. is for were tried double ‘We 1948); States, (9th Cir. Diego, you these Federal offenses Horne, United States v. 423 F.2d 630 prosecute may can’t legal us.’ There be other Keeble v. they defenses that raise that States, 347 F.2d 951 about, don’t like—” It was not error to refuse defend objection Defendants’ to the statement requested jury ants’ instruction concerning jeopardy double was over- jeopardy effect not a that double was by judge ruled opinion was of the who pros bar to successive state and federal merely prosecutor that the ecutions. The court clarified the matter possibilities suggesting other than the instructing jury properly for certainty and conviction they them that not to be concerned were subsequent motion for A way might grounds any upon defendant mistrial the same subject denied. prosecution in a state judge court. The who heard what was D’Aquino States, 192 F. v. United said and was done is better saw what 1951), court adequate qualified prescribe we to than said, judge opportuni “The trial had an remedy. ty superior us to far to that afforded judge whether the remarks of counsel Appellants given a further setting they make which requir the court order contention that re constituted such misconduct as to provide exem quire them to emphatic a more admonition plars citations under disregard. threat instruction to the rights Fourth system under the jurisprudence violated their Our properly primarily and Fifth Amendments. for makes it a matter legal mean, that enter Well, ques- think —don’t 4. “TI-IE COURT: is they’ve really— your tion, argument, consideration this is and Counsel they’ve exposed merely possibilities, to tell suggested themselves look may not have the truth because think it be —a certain amount should exposed at all for all themselves in the matter latitude know. it has been allowed this case.” guarantee au- There The counsel the Government con- prosecute if thorities are tinued : may and find cut them loose “There be other reasons. may prevent the Federal elements didn’t —that be rules of law which would proven.” successful State conviction So, I admitted. same offenses that indictment, the Government After compelling exe- order an moved for UNITED STATES handprinting handwriting and

cution of Appellee, Following exemplars each defendant. granted hearing, motion ACREE, Appellant. William Marvin Oregon, Kephart, were in who No. 72-1009. exemplars in to execute were ordered United States Court of Attorney office Tenth Circuit. appeared but Defendants in Portland. exemplars. complete the refused being Their refusals Rehearing Denied Oct. 1972. contempt by the United States found in Oregon. Thereupon, District Court agreed ex- the defendants to execute the *4 finding emplars During trial, the exem-

was vacated. plars over

were admitted into evidence (cid:127) objections.

defendants’

Securing exemplars handprinting from not a defendant does right against

violate self-incrimina- California, v. tion. 388 U.S. Gilbert 263, 266, 1951, 1953, L.Ed.2d 87 18 S.Ct. Beshers, (1967);

1178 United v. States 1971) 450,

437 451 F.2d Rudy,

(handwriting); v. 1970) (hand- 993,

429 994 post-indictment

printing). proce- exemplars, these

dures to obtain used hearing, do not

which included a court

constitute an search and unreasonable

seizure in violation rights.

Fourth Amendment United Palma, 414 F.2d v. De 394

States Mississippi, See Davis 1394, L.Ed. 89 22 U.S. S.Ct. Long, (1969); States F.Supp. (W.D., Mo.

Affirmed. Judge (dissent-

MERRILL, Circuit

ing) : disagree majority on the with the closing ar-

matter of the Government’s

gument. invited, To me it misleading wholly

clearly improper,

prejudicial. opportunity no

respond judgment my de- to it. clarifying

manded instruction.

would for new trial. reverse remand